mises; for the words were words of qualification, and not of contract (h).

Where the law creates a duty or charge, and the party is disabled from performing it, without any default on his part, and has not any remedy over, the law will excuse him; but where the party, by his own contract, imposes on himself a duty or charge, he is bound to make it good, notwithstanding inevitable accident; because he might have provided against it by his own contract (i). "Where an obligation is imposed by rule of law, and there is not any express covenant, the law introduces a reasonable exception, riz. that an act of irresistible violence will excuse the party; but if a party enter into an absolute contract, without any qualification or exception, and receives from the party with whom he contracts the consideration for such engagement, he must abide by the contract, and either do the act, or pay damages, his liability arising from his own direct and positive undertaking" (k).

A lease for years was made of a meadow bounded on one side by a river; and the lessee covenanted to sustain and repair the banks, to prevent the water from overflowing the meadow, upon pain of forfeiture of a sum of money; afterwards by a sudden and violent flood, the banks were destroyed, and, by the opinion of Fitzherbert and Shelley, Js., "The law is, that the lessee is excused from the penalty, because it is the act of God, which cannot be resisted; but still he is bound to make and repair the thing in convenient time, because of his own covenant" (l). So where the assignee of a reversion brought covenant against lessee of a house for non-payment of a year's rent; the lease contained a covenant on the part of the defendant to repair the house during the term, except it should be destroyed by fire; the defendant pleaded, that before any part of the rent in question became due, the premises were destroyed by fire, against the will of defendant, and were not rebuilt by the lessor or the plaintiff'; and that the defendant did not occupy the premises during the year for which the rent was claimed. On demurrer, it was held, on the authority of Paradine v. Jane, that the defendant was bound by his express covenant to pay the rent during the term (m).

In such cases the general rule prevails, that equity follows the law; and a court of equity will not restrain a party from proceeding at law for rent arrear after the premises are destroyed by fire; the agreement for payment of the rent being without restriction (n); and in Leeds v. Cheetham (o), it was decided, that a tenant has no

(h) Wolveridge V. Steward (Exch. Cham.), 1 C. & M. 644.

(i) Paradine v. Jane, Aleyn. 27. See Atkinson v. Ritchie, 10 East, 533, per Lord Ellenborough, C. J.; Evans v. Hutton, 4 M. & G. 954.

(k) Per Chambre, J., Beale v. Thompson,

3 B. & P. 420.

(1) Dyer, 33, a.

(m) Monk v. Cooper, 2 Stra. 763. See Belfour v. Weston, 1 T. R 310. (n) Gregg v. Coates, 23 Beav. 33. (0) 1 Sim. 146.

equity to compel his landlord to expend money received from an insurance-office, on the demised premises being burnt down, in re-building the premises, or to restrain the landlord from suing for the rent until the premises are rebuilt. In that case the defendant had demised to the plaintiff a cotton factory, with the steam-boiler, &c. for twenty-one years, at a rent of £ The plaintiff covenanted to pay the rent, and to repair and keep repaired the inside of the cotton factory, &c., and the defendant covenanted to maintain the outside brickwork and all other outer parts of the premises in good and tenantable repair, &c. There was not any exception in respect of accidents by fire, either in the covenant for payment of the rent, or in the covenant to repair. During the term the factory was destroyed by fire. After the lease was granted, the defendant had insured the factory and buildings for 5007., the steam-engine for 1007., the engine-house for 607., and the gearing for 407.; and, shortly after the fire, had received the total of these sums, viz. 7001, from the insurance-office. The bill prayed that it might be declared, that the defendant was bound to apply the 7001. and the old materials, in reinstating the factory, steam-engine, &c., and that the plaintiff was not bound to pay the rent during such time as the factory, &c. should continue unrestored. Sir J. Leach, V. C., "Clearly, at law, the plaintiff, having covenanted to pay his rent during the whole continuance of the lease, is not entitled to any suspension of rent during the time that will be occupied in rebuilding and restoration of the premises: it appears to me that, in this respect, equity must follow the law; the plaintiff might have provided in the lease for a suspension of the rent in the case of accident. by fire; but, not having done so, a court of equity cannot supply that provision, which he has omitted to make for himself; and it must be intended that the purpose of the parties was according to the legal effect of the contract. With respect to the equity, which the plaintiff alleges to arise from the defendant's receipt of the insurance-money, there is no satisfactory principle to support it. The defendant, having so contracted with the plaintiff as to render himself liable to rebuild the outer work of the factory in case of accident by fire, has very prudently protected himself by insurance from the loss he would otherwise have sustained by such an accident; but upon what principle can it be that the plaintiff's situation is to be changed by that precaution on the part of the defendant, with which the plaintiff had nothing whatever to do? The plaintiff has sought his protection in the contract by the covenant, which he has required from the defendant; and to those covenants he must alone resort."

Ejectment by tenant against landlord to recover the possession of some houses which had been burned down during the term, and had been rebuilt by the landlord. In the lease there was an express covenant, on the part of the tenant, to pay the rent, but he had not paid any after the time of the fire. Lord Mansfield, C. J.,

to

said, the consequence of the houses being burned down was, that the landlord was not obliged to rebuild, but the tenant was obliged pay the rent during the whole term. The houses having been burned down four years before action brought, and the rent not having been paid during that period, he left it to the jury to consider whether it was not to be presumed that the tenant had abandoned the lease at the time of the fire; and the jury found a verdict for the defendant. Pindar v. Ainsley, cited 1 T. R. 312.

A covenant for payment of rent, or a charge, frequently specifies some place where the payment is to be made. Where this is so, it is for the benefit of the person charged, who would otherwise be bound to seek his creditor. It is matter of defence, and must be specially pleaded (p).

Of Express Covenants running with the Land.-Covenants for title are frequently termed real covenants, and pass by the common law to the assignees of the land, who may maintain actions upon them against the vendor and his real and personal representatives (q). And as the covenants relate to the land, an assignee may maintain an action on them, although they were entered into with the origi nal grantee and his heirs only; and where the covenants run with the land, although they are entered into with the party, his executors and administrators, yet they will go to the heir with the land. The right of action, even for a breach in the ancestor's lifetime, will descend to the heir, and not to the executor, where no actual damage was sustained by the ancestor (r). See post, IV. 1, p. 510.

Express covenants, which run with the land, entered into by lessee for years, for himself, his executors, administrators, and assigns, are binding on the lessee and his personal representative, (having assets,) during the continuance of the term; although such covenants are broken, after an assignment of the term by the lessee, and after an acceptance of rent from the assignee by the lessor, or grantee of the reversion; and there is not any distinction in this respect between a voluntary assignment by the lessee and a compulsory transfer by virtue of the bankrupt laws (s). In covenant against lessee of a house by indenture, wherein the lessee had covenanted for himself, his executors, and assigns, that he would repair within a month after warning; the breach assigned was for not repairing the house within a month after warning given; the defendant pleaded, that a long time before that warning he assigned his term to J. S., who paid his rent always afterwards to the plaintiff, who had accepted the same; and then averred the performance of

(p) Paine v. Emery, 5 Tyrw. 1100, n.
(q) Middlemore v. Goodale, Cro. Car.

503.

(r) See 2 Sugden's V. & P. 458

(10th ed.), and cases there cited.

(s) Auriol v. Mills, 4 T. R. 94. But see 12 & 13 Vict. c. 106, s. 145, post.

all the covenants until the assignment; the plaintiff demurred, on the ground that this assignment did not take from the lessor his advantage of the express covenant; and, notwithstanding his acceptance of rent by the hands of the assignee, yet he might charge the lessee or assignee at his election; and the whole court being of that opinion, it was adjudged for the plaintiff (t). The same point was ruled in Ventrice v. Goodcheap, 1 Roll. Abr. 522, (N.) pl. 1. where the lessee had covenanted for himself and his assigns to repair; on the ground that the lessee had expressly covenanted for himself and his assigns, and that this personal covenant could not be transferred by the acceptance of the rent. So where the breach was for non-payment of rent (u). In Mayor v. Steward, 4 Burr. 2439, it was held, that a bankrupt was bound by an express collateral covenant, (to indemnify plaintiff against the covenants of a lease,) which had been broken after an act of bankruptcy committed, and after the defendant had obtained his certificate.

From the foregoing cases it appears clearly, that express covenants, which run with the land, entered into by lessee for years, for himself, his executors, administrators, and assigns, are binding on the lessee during the continuance of the term, although such covenants are broken after an assignment of the term by the lessee, and after the acceptance of rent from the assignee by the lessor or grantee of the reversion; it remains only to add, that such covenants, under the same circumstances, are binding on the personal representative of the lessee having assets. In covenant by the lessor against the executor of lessee for years, on an indenture, by which the lessee had covenanted for himself, his executors, and assigns, that he would not erect any building in the garden demised to the prejudice of the lessor's lights; it was alleged, that an assignee of defendant's testator had erected a house in the garden to the prejudice of the lessor's lights. Defendant pleaded an assignment of the term to J. S., who had paid rent to the lessor, and had been accepted by him as tenant. On demurrer, it was contended, on the part of the defendant, that by the assignment and acceptance of rent, the privity of contract was determined, more especially as it was a contract which concerned an act to be executed on the land, and therefore running with the land; but the court conceived, that as it was an express covenant, that the lessee should not build, it should bind him and his executors; and neither an assignment, nor an acceptance of rent from the assignee, could deprive the lessor of the advantage of suing the lessee or his executors on an express covenant (x).

(1) Barnard v. Godscall, Cro. Jac. 309. (u) Devon v. Collier, 1 Roll. Abr. 522, (N.) pl. 1; and see Fisher v. Ameers, 1 Brownl. 20; Thursby v. Plant, Sid. 402; Sid. 447, nota; Boulton v. Cann, Freem. 337; Ashurst v. Mingay, 2 Show. 134; VOL. I.

Edwards v. Morgan, 3 Lev. 233; Jodderell
v. Cowell, Ca. Temp. Hardw. 343.

(x) Bachelour v. Gage, Cro. Car. 188,
and Sir W. Jones, 223; Arthur v. Vander-
plank, B. R. H. 7 Geo. II. MS. S. P.

K K

Queen Elizabeth, by letters patent, demised a house for years, which the lessee covenanted to repair. On the death of the Queen, the reversion descended to King James, when the lessee assigned his term, and the assignee paid rent to the King, who afterwards granted the reversion to the plaintiff; the house being out of repair, the plaintiff brought covenant against the executors of the lessee for a breach of the covenant committed after an assignment of the term and reversion, and after plaintiff had accepted rent from the assignee of the term; it was held, that the action would lie, on the ground that it was a covenant in fait, by the express words, running with the land and that, notwithstanding an assignment, the covenantor and his executors were always chargeable, so that he could not, either by the assignment of his estate, or by any other act, discharge himself or his executors, (who were chargeable by the act of the testator,) having assets, as long as the reversion continued in the lessor; and by the express words of 32 Hen. VIII. c. 34, such remedy as the lessor might have had against the lessee or his executors, the assignee of the reversion shall have against them (y): it being a covenant in fait, which runs with the land (z).

A covenant made between a lessee holding under letters patent, and his under-lessees, that he would procure the original letters patent to be renewed, and the lease under which he held to be confirmed absolutely for a certain term, is a covenant which runs with the land, inasmuch as it affects the very existence and continuance of the term itself" (a). See further as to covenants running with the land, and the rights and liabilities of assignees, post, p. 510.

2. Of Implied Covenants (b).

In order to constitute a covenant, it is not necessary that the word "covenant" should be employed (c), for there are certain words, which, though of themselves they do not import any express covenant, yet, when used in contracts by deed, will amount to a covenant (d). As if A., by indenture," demise and grant" lands to B. for years, and C. enters and evicts B. by rightful title, B. may maintain an action on the implied covenant; and A. is estopped from saying that B. was not in by the lease (e). But now by 8 & 9 Vict. c. 106, s. 4, the word "give," or the word "grant," in a deed shall not imply any covenant in law in respect of any tenements or

(y) At common law covenants run with the land, but not with the reversion. Thursby v. Plant, 1 Wms. Saund. 240, n. (a).

(z) Bret v. Cumberland, Cro. Jac. 521. (a) Simpson v. Clayton, 4 B. N. C. 780. (b) The doctrine of implied covenants, i. e., of covenants implied from the use of particular words, is confined to real property. Hence if goods be demised for

years, and the lessee be evicted, covenant does not lie; for the law does not create a covenant for a personal thing. Com. Dig. Cov. (A. 4.)

(c) Stevenson's case, 1 Leon. 324; cited in Saltoun v. Houstoun, 1 Bingh. 440; and see Simpson v. Easterby, B. & C. 505; (Exch. Cham.), 6 Bingh. 644, S. C. (d) 1 Roll. Abr. 519, (F.) (e) Style v. Hearing, Cro. Jac. 73.